State ex rel. Dyer v. Sims

62 Ohio Law. Abs. 584

• Court: Ohio Court of Appeals
• Decided: April 9, 1951
• Docket: No. 147
• Status: Published

Opinions

MR. JUSTICE FRANKFURTER

delivered the opinion of the court.

After extended negotiations eight states entered into a compact to control pollution in the Ohio River system. See Ohio River Valley Water Sanitation Compact, 54 Stat. 752, 33 U. S. C. A. Section 567a note. Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia and West Virginia recognized that they were faced with one of the problems of government that are defined by natural rather than political boundaries. Accordingly, they pledged themselves to cooperate in maintaining waters in the Ohio River basin in a santiary condition through the administrative mechanism of the Ohio River Valley Water Sanitation Commission, consisting of three members from each state and three representing the United States.

The heart of the Compact is Article VI. This provides that sewage discharged into boundary streams or streams flowing from one state into another “shall be so treated, within a time reasonable for the construction of the necessary works, as to provide for substantially complete removal of settleable solids, and the removal of not less than forty-five per cent (45%) of the total suspended solids; provided that, in order to protect the public health or to preserve the waters for other legitimate purposes, * * * in specific instances such higher degree of treatment shall be used as may be determined to be necessary by the Commission after investigation, due notice and hearing.” Industrial wastes are to be treated “to such degree as may be determined to be necessary by the Commission after investigation, due notice and hearing.” Sewage and industrial wastes discharged into streams located wholly within one state are to be treated “to that extent, if any, which may be necessary to maintain such waters in a sanitary and satisfactory condition at least equal to the condition of the waters of the interstate stream immediately above the confluence.”

Article IX provides that the Commission may, after notice and hearing, issue orders for compliance enforceable in the state and federal courts. It further provides: “No such order shall go into effect unless and until it receives the assent of at least a majority of the commissioners from each of not less than a majority of the signatory states; and no such order upon a municipality, corporation, person or entity in any state shall go into effect unless and until it receives the assent of not less than a majority of the commissioners from such state.”

By Article X the states also agree “to appropriate for the salaries, office and other administrative expenses, their proper proportion of the annual budget as determined by the Commission and approved by the Governors of the signatory states

The present controversy arose because of conflicting views between officials of West Virginia regarding the responsibility of West Virginia under the compact.

The legislature of that state ratified and approved the compact on March 11, 1939. W. Va. Acts 1939, c. 38. Congress gave its consent on July 11, 1940, 54 Stat. 752, and upon adoption by all the signatory states the compact was formally executed by the Governor of West Virginia on June 30, 1948. At its 1949 session the West Virginia legislature appropriated $12,250 as the state’s contribution to the expenses of the Commission for the fiscal year beginning July 1, 1949. W. Va. Acts 1949, c. 9, Item 93. Respondent Sims, the auditor of the state, refused to issue a warrant upon its treasury for payment of this appropriation. To compel him to issue it', the West Virginia Commissioners to the Compact Commission and the members of the West Virginia State Water Commission instituted this original mandamus proceeding in the Supreme Court of Appeals of West Virginia. The court denied relief on the merits and we brought the case here, 340 U. S. 807, 71 S. Ct. 51, because questions of obviously important public interest are raised.

The West Virginia court found that the “sole question” before it was the validity of the Act of 1939 approving West Virginia’s adherence to the compact. It found that Act invalid in that (1) the Compact was deemed to delegate West Virginia’s police power to other states and to the federal government, and (2) it was deemed to bind future legislatures to make appropriations for the continued activities of the Sanitation Commission and thus to violate Art. X, Section 4 of the West Virginia Constitution.

Briefs filed on behalf of the United States and other states, as amici, invite the court to consider far-reaching issues relating to the Compact Clause of the United States Constitution. Art I, Section 10, cl. 3. The United States urges that the Compact be so read as to allow any signatory state to withdraw from its obligations at any time. 'Pennsylvania, Ohio, Indiana, Illinois, Kentucky and New York contend that the Compact Clause precludes any state from limiting its power to. enter into a compact to which congress has consented. We must not be tempted by these inviting vistas. We need not go beyond the issues on which tthe West Virginia court found the Compact not binding on that state. That these are issues which give this court jurisdiction to review the state court proceeding, 28 U. S. C. Section 1257, needs no discussion after Delaware River Joint Toll Bridge Comm. v. Colburn, 310 U. S. 419, 427, 60 S. Ct. 1039, 1040, 84 L. Ed. 1287.

Control of pollution in interstate streams might, on occasion, be an appropriate subject for national legislation. Compare State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508, 61 S. Ct. 1050, 85 L. Ed. 1487. But, with prescience, the framers left the states free to settle regional controversies in diverse ways. Solution of the problem underlying this case may' be attempted directly by the affected states through contentious litigation before this court. State of Missouri v. State of Illinois, 180 U. S. 208, 21 S. Ct. 331, 45 L. Ed. 497, Id., 200 U. S. 496, 26 S. Ct. 268, 50 L. Ed. 572; People of State of New York v. State of New Jersey, 256 U. S. 296, 41 S. Ct. 492, 65 L. Ed. 937. Adjudication here of conflicting state interests affecting stream pollution does not rest upon the law of a particular state. This court decides such controversies according to “principles it must have power to declare.” State of Missouri v. State of Illinois, supra, 200 U. S. at page 519, 26 S. Ct. at page 269. But the delicacy of interstate relationships and the inherent limitations upon this court’s ability to. deal with multifarious local problems have naturally led to exacting standards of judicial intervention and have inhibited the formulation of a code for dealing with such controversies. As Mr. Justice Holmes put it: “Before this court ought to intervene, the case should be of serious magnitude, clearly and fully proved, and the principle to be applied should be one which the court is prepared deliberately to maintain against all considerations on the other side.” State of Missouri v. State of Illinois, supra, 200 U. S. at page 521, 26 S. Ct. at page 270.

Indeed, so awkward and unsatisfactory is the available litigious solution for these problems that this court deemed it appropriate to emphasize the practical constitutional alternative provided by the Compact Clause. Experience led us to suggest that a problem such as that involved here is “more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the states so vitally interested in it than by proceedings in any court however constituted.” People of State of New York v. State of New Jersey, supra, 256 U. S. at page 313, 41 S. Ct. at page 498. The suggestion has had fruitful response.

The growing interdependence of regional interests, calling for regional adjustments, has brought extensive use of compacts. A compact is more than a supple device for dealing with interests confined within a region. That it is also a means of safeguarding, the national interest is well illustrated in the Compact now under review. Not only was congressional consent required, as for all compacts; direct participation by the federal government was provided in the president’s appointment of three members of the Compact Commission. Art. IV, Art. XI, Section 3.

But a compact is after all a legal document. Though the circumstances of its drafting are likely to assure great care and deliberation, all avoidance of disputes as to scope and meaning is not within human gift. Just as this court has power to settle disputes between states where there is no compact, it must have final power to pass upon the meaning and validity of compacts. It requires no elaborate argument to reject the suggestion that an agreement solemnly entered into between states by those who alone have political authority to speak for a state can be unilaterally nullified, or given final meaning by an organ of one of the contracting states. A state cannot be its own ultimate judge in a controversy with a sister state. To determine the nature and scope of obligations as between states, whether they arise through the legislative means of compact or the “federal common law” governing interstate controversies. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 110, 58 S. Ct. 803, 811, 82 L. Ed. 1202, is the function and $uty of the Supreme Court of the Nation. Of course every deference will be shown to what the highest court of a state deems to be the law and policy of its state, particularly when recondite or unique features of local law are urged. Deference is one thing; submission to a state’s own determination of whether it has undertaken an obligation, what that obligation is, and whether it conflicts with a disability of the state to undertake it is quite another.

The Supreme Court of Appeals of the State of West Virginia is, for exclusively state purposes, the utimate tribunal in constrúing the meaning of her Constitution. But two prior decisions of this court make clear that we are free to examine determinations of law by state courts in the limited field where a compact brings in issue the rights of other states and the United States.

Commonwealth of Kentucky v. State of Indiana, 281 U. S. 163, 50 S. Ct. 275, 74 L. Ed. 784, dealt with a compact to build a bridge across the Ohio River. In an original action brought before this court, Indiana defended on the ground that she should not be compelled to perform until the Indiana courts decided, in a pending case, whether her officials had been authorized to enter into the compact. Mr. Chief Justice Hughes, speaking for a unanimous court, dismissed the argument: “Where the states themselves are before this court for the determination of a controversy between them, neither can determine their rights inter sese, and this court must pass upon every question essential to süch a determination, although local legislation and questions of state authorization may be involved. [Commonwealth of] Virginia v. [State of] West Virginia, 11 Wall. 39, 56, 20 L. Ed. 67; Id., 220 U. S. 1, 28, 31 S. Ct. 330, 55 L. Ed. 353. A decision in the present instance by the state court would not determine the controversy here.” 281 U. S. at pages 176-177, 50 S. Ct. at page 278.

In reaching this conclusion the Chief Justice could hardly avoid analogizing the situation to that where a question is raised whether a state has impaired the obligation of a contract. “It has frequently been held that, when a question is suitably raised whether the law of a state has impaired the obligation of a contract, in violation of the constitutional provision, this court must determine for itself whether a contract exists, what are its obligations, and whether they have been impaired by the legislation of the state. While this court always examines with appropriate respect the decisions of state courts bearing upon such questions, such decisions do not detract from the responsibility of this court in reaching its own conclusions as to the contract, its obligations and impairment, for otherwise the constitutional guaranty could not properly be enforced. Larson v. [State of] South Dakota, 278 U. S. 429, 433, 49 S. Ct. 196, 73 L. Ed. 441, and cases there cited.” 281 U. S, at page 176, 50 S. Ct. at page 278.

Hinderlider v. La Plata River & Cherry Creek Ditch Co., supra, is the second of these cases. It also makes clear, if authority be needed, that the fact the compact questions reach us on a writ of certiorari rather than by way of an original action brought by a state does not affect the power of this court. In the Hinderlider case, an action was brought in the Colorado courts to enjoin performance of a compact between Colorado and New Mexico concerning water rights in the La Plata River. The state court held that the compact was invalid because it affected appropriation rights guaranteed by the Colorado State Constitution. 101 Colo. 73, 70 P. 2d 849; see also 93 Colo. 128, 25 P. 2d 187. Mr. Justice Brandéis, likewise speaking for a unanimous court, held that the relative claims of New Mexico and Colorado citizens could be determined by compact and reversed the decision of the state court.

The issue in the Hinderlider case was whether the Colorado legislature had authority, under the State constitution, to enter into a compact which affected the water rights of her citizens. The issue before us is whether the West Virginia legislature had authority, under her constitution, to enter into a compact which involves delegation of power to an interstate agency and an agreement to appropriate funds for the administrative expenses of the agency.

That a legislature may delegate to an administrative body the power to make rules and decide particular cases is one of the axioms of modern government. The West Virginia court does not challenge the general proposition but objects to the delegation here involved because it is to a body outside the state and because its legislature may not be free, at any time, to withdraw the power delegated. We are not here concerned, and so need not deal, with specific language in a state constitution requiring that the state settle its problems with other states without delegating power to an interstate agency. What is involved is the conventional grant of legislative power. We find nothing in that to indicate that West Virginia may not solve a problem such as the control of river pollution by compact and by the delegation, if such it be, necessary to effectuate such solution by compact. If this court, in the exercise of its original jurisdiction, were to enter a decree requiring West Virginia to abate pollution of inter-state streams, that decree would bind the state. The West Virginia Legislature would have no part in determining the state’s obligation? The state legislature could not alter it; it could not disregard it, as West Virginia on another occasion so creditably recognized. The obligation would be fixed by this court on the basis of a master’s report. Here, the state has bound itself to control pollution by the more effective means of an agreement with other states. The Compact involves a reasonably and carefully limited delegation of power to an interstate agency. Nothing in its constitution suggests that, in dealing. with the problem dealt with by the Compact, West Virginia must wait for the answer to be dictated by this court after harassing and unsatisfactory litigation.

What Mr. Justice Brandéis said of the Colorado court decision in Hinderlider v. La Plata River & Cherry Creek Ditch Co., supra, applies to the decision of the West Virginia court: “It ignores the history and order of development of the two means provided by the constitution for adjusting interstate controversies. The compact — the legislative means — adapts to our union of sovereign states the age-old treaty making power of independent sovereign nations. Adjustment by compact without a judicial or quasi-judicial determination of existing rights had been practiced in the Colonies, was practiced by the states before the adoption of the Constitution, and had been extensively practiced in the United States for nearly half a century before this court first applied the judicial means in settling the boundary dispute in State of Rhode Island v. [Commonwealth of] Massachusetts, 12 Pet. 657, 723-725, 9 L. Ed. 1233.” 304 U. S. at page 104, 58 S. Ct. at page 808.

The state court also held that the Compact is in conflict with Art. X. Section 4, of the state constitution and for that reason is not binding on .West Virginia. This section provides: “No debt shall be contracted by this state, except to meet casual deficits in the revenue, to redeem a previous liability of the state, to suppress insurrection, repel invasion or defend the state in time of war; but the payment of any liability other than that for the ordinary expenses of the state, shall be equally distributed over a period of at least twenty years.”

The Compact was evidently drawn with great care to meet the problem of debt limitation in light of this section an,d similar restrictive provisions in the constitutions of other states. Although, under Art. X of the Compact, the states agree to appropriate funds for administrative expenses the annual budget must be approved by the governors of the signatory states. In addition, Article V provides: “The commission shall not incur any obligations of any kind prior to the making of appropriations adequate to meet the same; nor shall the commission pledge the credit of any of the signatory states, except by and with the authority of the legislature thereof.” In view of these provisions, we conclude that the obligation of the state under the Compact is not in conflict with Art. X, Section 4 of the state constitution.

Reversed and remanded.

MR. JUSTICE BLACK concurs in the result. MR. JUSTICE REED (concurring),